NC legislature overreached in creating coal ash commission, justices rule | News & Observer

The North Carolina Supreme Court ruled Friday that legislators overstepped their authority in 2014 when they created the Coal Ash Management Commission and two others like it to carry out functions that belong to the executive branch.

The ruling comes slightly more than a year after Gov. Pat McCrory and several former governors sued N.C. Senate leader Phil Berger and House Speaker Tim Moore, as well as appointed members of the coal ash commission.

“We hold that, while the appointments clause itself places no restrictions on the General Assembly’s ability to appoint statutory officers, the challenged provisions violate the separation of powers clause,” the justices said in their ruling.

“In short, the legislative branch has exerted too much control over commissions that have final executive authority. By doing so, it has prevented the Governor from performing his express constitutional duty to take care that the laws are faithfully executed.”

The ruling means members of the three commissions involved will have to be reappointed, said Bob Stephens, the governor’s legal counsel.

The nine-member coal ash commission, which had to suspend operations when the suit was filed, was planning to hold hearings around the state as it developed a priority list for closing and cleaning up basins that store coal ash – the waste left when coal is burned in power plants.

“I am pleased that there has been progress made towards resolving this matter,” said Michael Jacobs, chairman of the commission. “While awaiting the outcome of this case, the three of us who were appointed by the Governor have worked closely with the staff to prepare to perform the Commission’s responsibilities, and we will continue to do so as we await clarity on the balance of the composition of the Commission.”

Legislators created the coal ash commission in 2014 after a high-profile spill of coal ash on the Dan River brought new scrutiny to oversight of Duke Energy.

They said an independent body was needed, in part, because of a federal probe into the possibility of criminal activity by the utility, and they wanted to be in charge of the bulk of the body’s membership.

McCrory argued that the legislative action put an improper limit on his power to carry out laws of the state. Former Govs. Jim Martin, a fellow Republican, and Jim Hunt, a Democrat, joined McCrory in the lawsuit.

Last March, a three-judge panel ruled in favor of McCrory, saying that the requirement that the coal ash commission be independent of the governor was unconstitutional.

In Friday’s ruling, the Supreme Court did not take up that issue, because its finding that the appointment procedure was unconstitutional made the former issue moot.

The court’s 6-1 decision stopped short of a ruling that covered all current and future commissions. Instead, the justices, with Paul Newby dissenting in part, ruled that they could consider issues related to the Coal Ash Commission and the Oil and Gas Commission and Mining Commission, which were created at the same time.

“When the General Assembly appoints executive officers that the Governor has little power to remove, it can appoint them essentially without the Governor’s influence,” the court found. “That leaves the Governor with little control over the views and priorities of the officers that the General Assembly appoints.”

In such situations, the justices ruled, McCrory could not carry out duties of the executive branch, one of the three branches of government.

Stephens, the governor’s counsel, said, “This matter was about a constitutional question that just needed to be answered. We appreciate what the Supreme Court has done in answering the question. We believe that it’s the appropriate answer for the good of the people of North Carolina. We’re going to work with the legislature to implement the conditions they’ve set out in this opinion.”

An attorney for the three governors in the case also praised the ruling.

“I’m relieved and gratified that we have a thoughtful opinion grounded in the principles that the founders advanced over two centuries ago, and as our Constitution teaches us, a recurrence to our fundamental principles ... is essential to preserve the blessings of our liberty,” John Wester said. “I’m really hopeful that we’re going to have a better functioning government as a result.”

Berger, a Republican from Rockingham County, and Moore, a Republican from Cleveland County, issued a joint statement:

“While we are disappointed, we respect the court’s responsibility to resolve these Constitutional questions and will carefully review the ruling and determine the next steps necessary to comply.”

N&O writer Craig Jarvis and Jim Morrill of The Charlotte Observer contributed to this report.